RotoWire Partners

Fielkow's Law: Gone in a Flash

Justin Fielkow

Justin Fielkow

Justin Fielkow is an attorney at the Franklin Law Group in Northfield, Illinois, a Chicago suburb. Justin attended Tulane University Law School and obtained a Certificate in Sports Law. He has been writing for Rotowire since 2008, first while at the University of Wisconsin, then and still as the beat writer for the New Orleans Saints, and now as a featured columnist providing insight into the legal side of sport with a fantasy spin.

In Week 9 of the 2013 NFL season, Jacksonville Jaguars' wide receiver Justin Blackmon was handed an indefinite suspension for violating the NFL's substance abuse policy, ruining numerous fantasy seasons in the process. Although Blackmon had missed the first four games of the 2013 season for a similar violation, it appeared that he was poised to secure his spot among the league's top offensive players, racking up a whopping 29 receptions for 415 yards, the third-most receiving yards in the league during that time frame.

Flash-forward to last week. On the Thursday before the first round of the 2014 NFL Draft, ESPN's "Outside the Lines" reported that another blossoming wideout was potentially facing a season-long suspension: the Cleveland Browns' Josh Gordon.

Well, at least we found out before the season started this time.

Eleven months ago, Gordon was suspended for two games and fined for two more contests for violating the league's substance abuse policy. Gordon blamed the suspension on prescribed medicine that he took for strep throat, which contained codeine, a banned substance, but admitted to failing three drug tests while in college at Baylor and then at Utah. At the time he was drafted with a second-round pick in the 2012 NFL Supplemental Draft, it was widely acknowledged the Browns were taking a big risk with Gordon.

The NFL has separate policies covering substance abuse and performance-enhancing drugs, and though the general goal of each is to prohibit the use of certain drugs and substances, the two policies differ in enforcement. Under the league's performance-enhancing drug policy, a positive test results in an immediate four-game ban. The substance abuse policy, however, is somewhat more lenient. Under the NFL's substance abuse policy - titled the "Policy and Program for Substances of Abuse" - the first positive test for a "substance of abuse"* results in the player formally entering an enhanced testing/treatment program (Stage One), where the player is tested more frequently. Thereafter, repeated failed tests or failure to comply with the league's "stages of intervention" - in which players are tested, evaluated, treated and monitored for substance abuse - eventually results in a four-game suspension**.

*According to the policy, the NFL "prohibits players from the illegal use, possession, or distribution of drugs, including but not limited to cocaine; marijuana; opiates and opioids; methylenedioxymethamphetamine (MDMA); and phencyclidine (PCP). The abuse of prescription drugs, over-the-counter drugs, and alcohol is also prohibited."

**According to ESPNCleveland, Gordon would have been suspended longer than two games in 2013 but college positive tests didn't carry over to NFL.

Although a player's status under the NFL's drug program is confidential, it has been reported that Gordon was in Stage Three of the league's substance abuse program. Under the policy, Gordon was subject to unannounced testing up to 10 times a month. Continued positive tests or incompliance with the NFL's treatment programs while in Stage Three ordinarily results in a banishment with the ability to re-apply after a minimum of one calendar year.

Gordon will have the opportunity to appeal the 16-game suspension. It's also possible that he could even attempt to negotiate with the league for a reduced suspension (similar to what Blackmon did last year). In either scenario, it's likely that he would advance an argument that he should have been in Stage Two and subject to a four-game suspension. Gordon may also argue that a reduced suspension would better reflect the trend in society, which has seen marijuana legalized in two states. There have also been significant discussions of implementing a new drug policy in the NFL that would significantly increase the threshold for a positive marijuana test and reduce the punishments for violations involving that drug, bringing the NFL's substance abuse policy more in line with that of the World Anti-Doping Agency. The fact that the league is potentially willing to alter its drug policy might help Gordon in any appeal or negotiation to reduce his suspension.

Even if a new policy is adopted, however, Gordon's positive test would still be subject to the current rules in place, and the NFL would likely argue that Gordon knew the rules, knew he was on his last chance and still went ahead and did what he did. There is certainly a big difference between four, eight and 16 games, but Gordon's history of illicit drug use and willful disregard of the rules - both in college and the NFL - likely means a heavy suspension is forthcoming. With Blackmon's recent suspension serving as precedent, Gordon is likely looking at a banishment of at least eight games this upcoming season.

What makes this all so unfortunate is the timing. Although he appeared in only 14 games, Gordon has emerged as one of the league's bright young stars, gaining a league-leading 1,646 yards on 87 catches (18.9 YPC) in 2013. He scored nine touchdowns; garnered 159 targets; and had seven games with at least 125 yards receiving, including two monstrous performances in Weeks 12 and 13 where he gained 237 and 261 yards, respectively. And he did all of this with the likes of Brian Hoyer, Brandon Weeden and Jason Campbell under center.

According to reports, the Browns knew about Gordon's positive test for two weeks prior to the Draft, but still neglected to draft a wide receiver with any of their six picks, even trading out of the fourth overall selection while consensus top receiver Sammy Watkins was still on the board.

As of now, the Browns are throwing their support behind Gordon. Said owner Jimmy Haslam, "All of us have made mistakes when we were that age. We're counting on Josh being a good football player for the Browns for a long time to come. We spend a lot of time with all of our core players and Josh is obviously one of those." But those sentiments can change in a hurry. The Jaguars made similar comments following Blackmon's suspension last year, but proceeded to draft two talented receivers - Marqise Lee and Allen Robinson - in the second round of this year's Draft. According to Jaguars' general manager David Caldwell in reference to Blackmon, "we've moved on for this year," adding that Blackmon can't be released until he's reinstated and hinting that there's little hope of Blackmon ever returning to the team.

Gordon, who had already served a two-game suspension at the start of the 2013 season, was operating on serious thin ice. Remarkably, he still slipped up, and as a result, almost certainly will be forced to suffer the consequences. As such, barring an overturn on appeal or a major abatement in his suspension, fantasy owners will have a difficult time relying on Gordon if he's forced to miss a significant time in 2014, despite his obvious talent. Additionally, Gordon must remain clean throughout his suspension, since he remains subject to unannounced testing up to 10 times per month, and any further slip-ups will make it harder for him to secure reinstatement. Thus, regardless of your opinion on the NFL's strict policies when it comes to controlling what substances may or may not enter a player's body, the league has proven unkind to those unable to follow its rules. Here's hoping Gordon can fall in step and prove he's more than just a flash in the pan.